Tu Phuc Nguyen v Joe Mayer [2016] NZFC 1371

Published 31 July 2016

Permission to vary order for overseas holiday — order preventing removal of children — Care of Children Act 2004, s 5 — Hague Convention. Mother’s application for travel with the children to her home country of Vietnam was refused. The existing order preventing removal of the children from their hometown in New Zealand could not be discharged or suspended because of the risk of non-return. Pursuant to s 5 of the Act the Court must be satisfied that the travel is in the best interests of the children and that the risk of non-return is acceptably low. Relevant factors were set out in BL v BLW (Family Court Rotorua, FAM-2002-063-000098, 3 August 2007 (para 14). The risks of non-return were thought to outweigh the benefits of travel for the children, though the Judge suggested risk profiles may change as the children got older and the mother’s situation in New Zealand became more stable. Factors against the application were: the children being too young to gain a meaningful cultural experience from the trip; the mother’s previous willingness to act unilaterally regarding the children; Vietnam not being a Hague Convention country; little evidence that the mother’s family could not travel, and evidence suggesting that the mother’s ties to Vietnam were stronger than her ties to New Zealand. **Note: names have been changed to comply with legal requirements.